A U.S. district court recently granted in part and denied in part the New York Times’s motion to dismiss claims that its subscription renewal terms violated North Carolina’s little-used Automatic Renewal Statute. The plaintiff, on behalf of a putative class, claimed that the Times subscription process failed to adequately disclose the automatic renewal and cancellation options as required by the statute. The court dismissed several of the plaintiff’s claims, but the case was allowed to proceed on allegations that the methodology for canceling was not clearly and conspicuously disclosed, and that the terms of subscription price increases were not provided in the format required by the statute.
Consumer Products
“Money-Back Guarantee” Deprived Plaintiff of Standing to Bring a False Labeling Class Action
By Jonah Panikar on
In recent years, sellers of consumer products have faced countless class action lawsuits alleging that their products are misleadingly advertised. Many motions to dismiss often turn on whether the product’s advertising is misleading to a reasonable consumer. But in Valiente v. Publix Super Markets, Inc., 2023 U.S. Dist. LEXIS 91089 (S.D. Fla. May 24, 2023), the court took a different tack, dismissing a false advertising claim on Article III standing grounds because the defendant’s “money-back guarantee” effectively mooted the plaintiff’s claim for monetary damages.…
Second Circuit Reiterates When Puffery Claims Can Be Dismissed at the Pleadings Stage
By Kaixin Fan & Cort Lannin on
The Second Circuit recently revived a plaintiff’s false advertising claims under New York’s General Business Law (“GBL”), concluding that whether the particular statements at issue were non-actionable puffery requires a fact-intensive inquiry not suitable for resolution on a motion to dismiss. MacNaughton v. Young Living Essential Oils, LC, No. 22-0344, 2023 WL 3185045 (2d Cir. May 2, 2023).…
Challenge to “I Can’t Believe It’s Not Butter! Spray” Labeling Is Preempted, Ninth Circuit Says
By Alice Phillips on
In a decision that boosts defendants’ chances of defeating mislabeling claims at the pleading stage, a Ninth Circuit panel held that that the Food Drug and Cosmetic Act (“FDCA”) expressly preempted plaintiffs’ claims. See Pardini et al. v. Unilever United States, Inc., No. 21-16806 (9th Cir. Apr. 18, 2023). …
New York Court Permits “Maximum Strength” False Advertising Case to Proceed
By Andrew Leff & Cort Lannin on
Posted in Consumer Products, Second Circuit
False advertising lawsuits challenging lidocaine products that are represented to be “maximum strength” have now survived motions to dismiss in several instances. Most recently, in Gonzalez Rodriguez v. Walmart, Inc., the plaintiffs brought a putative class action alleging that Walmart’s private label Equate-brand lidocaine patches and creams are falsely labeled as “maximum strength” or “max strength.” The three challenged products are labeled as 4% lidocaine, and allegedly contain 360 milligrams of lidocaine. The plaintiffs allege that certain prescription-strength patches deliver up to a 5% dose of lidocaine, and other over-the-counter patches deliver 560 milligrams of lidocaine—200 milligrams more than Walmart’s products. The Southern District of New York concluded that plaintiffs had adequately pled claims under New York’s consumer protection statutes (GBL §§ 349 and 350), reasoning that “it is plausible that a reasonable consumer would understand ‘maximum strength’ to mean that the patch product contains the maximum amount of lidocaine available on the market for that type of product.” Gonzalez Rodriguez v. Walmart, Inc., 2023 WL 2664134, at *4 (S.D.N.Y. Mar. 28, 2023). Though Walmart argued that (1) prescription-strength patches are not proper comparators and (2) the plaintiffs used erroneous calculations regarding the amount of lidocaine in comparator products, the court rejected these arguments as “fact-intensive disputes [] not appropriate for resolution at the motion-to-dismiss stage.”…
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New Hampshire Supreme Court Rejects Medical Monitoring Claims
By Steve Petkis, Emily Ullman & Andrew Soukup on
In products and class action cases involving exposure to purportedly hazardous materials, plaintiffs often have trouble demonstrating concrete physical injuries, and in particular concrete physical injuries that would be common across a class. To avoid dismissal and bolster class certification, those plaintiffs sometimes bring so-called “medical monitoring” claims, which seek recovery for the present-day costs…
California Urges Ninth Circuit to Clamp Down on Dismissals for Insufficient Pleading Under “Reasonable Consumer” Test
By Andrew Soukup & Kanu Song on
The California Attorney General has joined the fray in Souter v. Edgewell, an otherwise little‑watched putative class action pending in the Ninth Circuit over allegedly misleading label claims about the efficacy and safety of the defendant’s hand wipes. The Attorney General is urging the Ninth Circuit to make it far more difficult for defendants…
New Class Action Litigation Targets Titanium Dioxide After EU Ban
Earlier this year, the European Commission decided to ban titanium dioxide as a food additive in the European Union, with a six-month phasing-out period that culminated in a full ban as of August 7, 2022. The decision was based on a recent assessment by the European Food Safety Authority, which had raised concerns over the…
“100% Recyclable” Labels Are Not False Just Because Not All Plastic Bottles Are Recycled
By Kaixin Fan, Cort Lannin & Ashley Simonsen on
Posted in Consumer Products, Food and Beverage
A court in the Northern District of California recently dismissed a complaint brought against several beverage companies, including Coca-Cola, on behalf of a putative class of consumers and the Sierra Club. Swartz v. Coca-Cola Co., No. 21-cv-04643-JD, 2022 U.S. Dist. LEXIS 209641 (N.D. Cal. Nov. 18, 2022). Asserting claims under California and common law, plaintiffs alleged that the “100% recyclable” representation on single-use plastic bottles supplied by defendants is false and misleading because not all plastic bottles discarded into recycling bins are processed into reusable material. Plaintiffs’ complaint cited to studies showing that recycling facilities in the U.S. lack the capacity to process most of the plastic waste generated, and not all plastic processed turns into material for reuse. Resolving defendants’ motion to dismiss, the court acknowledged that “the question of consumer deception may be a factual matter unsuitable for resolution in a motion to dismiss,” but concluded that plaintiffs here failed to meet “the initial burden of pleading factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged as informed by judicial experience and common sense.” …
First Circuit Holds Alleged Overpayment Enough for Article III Standing
By Dillon Grimm & Andrew Soukup on
The First Circuit recently revived consumer deception claims challenging the safety and testing of a car booster seat manufactured by Evenflo, in a case that potentially makes it easier for class-action plaintiffs to satisfy Article III’s standing requirements in the First Circuit when they only allege an economic injury. …
Continue Reading First Circuit Holds Alleged Overpayment Enough for Article III Standing